Carew v Transport Accident Commission
[2021] VCC 48
•10 February 2021
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05532
| CHRIS(TOPHER) WILLIAM CAREW | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10 and 11 December 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 10 February 2021 | |
CASE MAY BE CITED AS: | Carew v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 48 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Lower back injury – pre-existing lower back injury – pre-existing impairment of function of the lower back – aggravation resulting from the subject transport accident – identification of the impairment consequences resulting from the aggravation – conflict in the medical evidence
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v FilipowiczArnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: The plaintiff’s origination motion is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr J D Kantor | Slater & Gordon Ltd |
| For the Defendant | Mr S A Smith QC with Ms K M Manning | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 14 January 2013, the plaintiff was stationary in his car on the Princes Highway at Warncoort, when another car collided into the rear of his car. The severity of the collision resulted in the plaintiff’s car being pushed into the stationary car ahead of him.
2 The plaintiff suffered a lower back injury in the transport accident. His application for serious injury is based upon that injury, which he says has resulted in a serious long-term impairment or loss of the function of his lower back.
3 The plaintiff’s serious injury application is far from simple. It will be seen as I journey through the evidence that the defendant raised doubt about whether the impairment consequences contended for by the plaintiff are due to the impairment of the function of the plaintiff’s lower back which pre-existed, and whether whatever aggravation occurred due to the transport accident resulted in any impairment consequences of any significance.
4 Mr J Valiotis of counsel and Mr J D Kantor of counsel appeared for the plaintiff. Mr S A Smith QC and Ms K M Manning of counsel appeared for the defendant.
5 Both parties consented to the proceeding being heard remotely, and I made an order to that effect.
Some relevant background
6 The plaintiff was born in October 1966. He is now fifty-three years of age. He is a qualified electrician. It would appear that the majority of his working life as an electrician has been spent in the construction industry.
7 The impression I was left with after hearing the plaintiff’s evidence, and after reviewing all of the evidence, is that the work he performed prior to the transport accident was reasonably heavy work with a significant manual component.
Pre-existing lower back condition
8 The plaintiff suffered injury to his lower back in around 1989 and then in 1990, and subsequent to suffering those injuries, he suffered the consequences of that lower back injury on and off.
9 In 1989, the plaintiff engaged in the activity of skydiving. He landed heavily, resulting in injury to his lower back. In 1990, he suffered further injury to his lower back in a transport accident. Under cross-examination, the plaintiff described the impact on his lower back of suffering those injuries:
Q:“Is it correct that that low back pain started at the time of this parachuting incident back in 1989?---
A:Yes.
Q:And that it worsened after the motor vehicle accident in which you were involved in 1990?---
A:Yes, it got a bit worse.
Q:And so from then, over the next 23 years, up until the time of the incident that brings us to this application, you continued to experience on and off, is that right?---
A:On and off, but I managed it quite well, I thought. I was able to work. After the initial first, um, accident, got over it, I was a young bloke, (indistinct) good, and yeah, just kept working with conservative management.”[1]
[1]Transcript 17
10 The plaintiff was referred to an affidavit sworn by Mr Mark William Buckley on 26 October 2020,[2] in which Mr Buckley described some of the tasks which the plaintiff was expected to undertake in work on a construction project in Western Australia in 2013-2014. The relevant part of the statement is as follows:
“… His role included lifting weights and pulling of cables which were rather large and heavy ones and he managed it. Sometimes he was a bit sore and tired from pulling cables all the time but that was just muscles that were achy.”[3]
[2]Defendant Court Book (“DCB”) 36-37, and the statement exhibited to his affidavit at DCB 39-40
[3]DCB 39
11 Under cross-examination, the plaintiff was asked whether the description given by Mr Buckley was consistent with the type of work which the plaintiff performed before the subject transport accident, and the manual nature of it. The plaintiff agreed that the description was consistent with the work he performed, however, he said that winches, rollers and other equipment were employed to pull cables because they are physically too large to manipulate manually. The work that might be done manually would be pushing them around, with other workers using a crowbar or something like a crowbar. He agreed that he occasionally worked in confined spaces and adopted awkward postures.[4]
[4]Transcript 17-18
12 Under cross-examination, the plaintiff described the extent to which he was restricted by the pre-existing lower back injury. He said that the lower back pain he experienced restricted him in performing heavy work. He said that it might slow him down, but he would push through, and he added that the pain he was experiencing would not stop him from working. He sought assistance with heavier jobs every now and again. He gave an example of the assistance he would seek when moving a big ladder or rolling a drum of cable. He did not agree that lifting a ladder of 25 kilograms was beyond his limits, but he would not lift and carry a weight of that order because he did not want to hurt himself or make the pain worse.
13 The plaintiff was probably not doing as much overtime as he had performed previously. [5]
[5]Transcript 24-25
14 The plaintiff restricted his motocross motorcycle riding to flat ground, such as, open roads and freeways, and I assume to avoid the inevitable jolting and jarring that would occur on rough and uneven ground.[6]
[6]Transcript 23-25
15 Under cross-examination, the plaintiff said that he regularly sought chiropractic and physiotherapy treatment. He obtained that treatment three or four times per year, and I assume since suffering the pre-existing lower back injury. He said that he is presently taking medication on and off, describing it as Disprin or Panadol.[7] It is not clear to me whether the answer made in the present tense was intended to describe the medication which the plaintiff used before the subject transport accident, and I say that, because in a report from Dr Rob McDonald, general practitioner, to the defendant dated 30 January 2020, Dr McDonald describes the plaintiff is using Celebrex, Endone, Panadeine Forte, Lyrica and Valium.[8] I infer from the context of the cross-examination leading to the question relating to medication, that it was a question asked relevant to the medication used by the plaintiff before the subject transport accident.
[7]Transcript 25
[8]PCB 47
16 Under cross-examination, the plaintiff was asked whether he experienced the worsening of his pre-existing lower back injury in 2012. He said he was not sure about the reason why he sought medical treatment, and the reason why he was referred to have a CT scan.[9] The CT scan was taken on 15 November 2012 on referral by Dr Colin McDonald.[10] The radiologist recorded a history of “worsening left sciatica”. The principal finding was of a left paracentral disc protrusion at L4-5, with a diffuse posterior disc bulge. It was in contact with, and displaced the origin of the left L5 nerve root. Under Comment, the radiologist then reported:
“Mr Carew’s symptoms relate to contact of the left L5 nerve-root at the L4/5 level. If his symptoms are not settling with conservative management, local anaesthetic and steroid could be injected into the epidural space at the left L4/5 level using CT guidance. This procedure would deliver a high dose of anti-inflammatory steroid around the protruding disc and compressed nerve.”[11]
[9]Transcript 25 and 26
[10]PCB 33-34
[11]PCB 33
17 The plaintiff was pressed on the reason why he saw Dr McDonald and why he was referred to have the CT scan. Whilst he did not contest the factual basis upon which he was cross-examined, he was unable to say much beyond that he accepted what was disclosed on the report of the CT scan; however, when he was asked whether what occurred in November 2012 was a significant problem for him, he described it as being annoying, and that he was nonetheless managing. He was not working at the time because of an Achilles tendon injury. He appeared to agree that whatever the state of his lower back was at that time, he eased off his motocross motorcycle riding, but still maintained the use of his road motorcycle.[12]
[12]Transcript 27-28
The Achilles injury
18 Some references were made to an injury which the plaintiff suffered to his Achilles tendon. I think it is convenient at this point to provide some background so that where those references are made they can be understood.
19 The plaintiff ruptured his Achilles tendon in April 2011. It was surgically repaired. He then had a long convalescence from April 2011, not returning to any gainful employment until March 2013. The only work he undertook was perhaps a day a month doing minor electrical work.[13]
[13]Transcript 27
Medical treatment – the subject transport accident
20 Dr McDonald provided three medical reports. The last of the three dated 21 August 2020 is a compilation of the content of the previous two medical reports and an updating of the position of the plaintiff.[14]
[14]The reports are dated 5 March 2015 at PCB 44-46, 30 January 2020 at PCB 47, and 21 August 2020 at PCB 48-52
21 The plaintiff was removed from the scene of the subject transport accident by ambulance. He was taken to the Colac Hospital. He says he complained of pain in his shoulders, neck and lower back. A CT scan was taken at the hospital. It refers to an L4-5 central disc protrusion impinging on the left L5 nerve, and some changes at L5-S1.[15]
[15]PCB 34
22 The plaintiff attended the Winchelsea Medical Clinic on 15 January 2013. Dr McDonald is one of the medical practitioners at the clinic. The plaintiff saw Dr Davor Sepetavc, general practitioner, who recorded that the plaintiff was complaining of pain in his left shoulder, neck, lower back and ankles.
23 The plaintiff then saw Dr Huxtable, osteopath, in Colac on 17 January 2013. Although, the plaintiff described having osteopathy treatment, seeing a “GP on occasion” and using medication, he did not describe how often he had that treatment nor the “GP” he saw. I assume the “GP” was Dr McDonald. He described the work which he obtained in March 2013, which I will refer to later in these reasons, and having fluctuating lower back pain, with some days being better than others. He also said that his lower back was easily aggravated and that he often experienced flareups of pain.[16]
[16]PCB 22
24 Subsequently, the plaintiff saw Dr McDonald on 11 April 2013. Dr McDonald said that he discussed the plaintiff’s neck problems with the plaintiff, and noted that there was no abnormality shown on the CT scan. Dr McDonald diagnosed a soft tissue injury and referred him to have massage. The plaintiff complained of difficulty sleeping, for which he was prescribed Valium to assist him with sleep and to ease spasms associated with neck pain.
25 The plaintiff next saw Dr McDonald on 8 May 2014. On that occasion, Dr McDonald noted that the plaintiff continued to have intermittent problems with both his neck and lower back “over the following years”. When the plaintiff returned to see him on 8 May 2014, he then noted the following:
“… I note when on examination on the 8/5/2014 he stated that he had a past L4-5 disc protrusion which had settled but 3 weeks before this his lower back pain had started to flare up and was continuing. He was getting numbness over the soles of both feet and toes. He saw a Chiropractor in Colac who had aggravated it by pressing over the wrong area. He usually saw an Osteopath and had an appointment to see him on the following Monday. We discussed that if his symptoms were getting worse that he get a CT scan to assess the situation and he was given some simple analgesic, Codalgin Forte to ease the pain.”[17]
[17]PCB 49
26 My interpretation of the foregoing is that the L4-5 disc protrusion must be a reference to what occurred in November 2012 which led to the plaintiff having a CT scan. Otherwise, the reference to it is unexplained. The reference to the plaintiff’s lower back pain flaring up “three weeks before” must be a reference to three weeks before the consultation of 8 May 2014.
27 I must interpolate here that the plaintiff obtained employment as an electrician in Western Australia in March 2013 and continued working in Western Australia until November 2014. It is necessary to understand that at this point because of the obvious gaps in the occasions when the plaintiff saw Dr McDonald over 2013 and 2014. I think at this point it is necessary to refer to how the plaintiff obtained work in Western Australia and the work that he performed. I will then return to the balance of the treatment provided by Dr McDonald, and also by other treating medical practitioners.
Western Australia
28 The plaintiff agreed that he received a letter offering him employment in Western Australia dated 14 March 2013, and which he signed as accepting the offer on 17 March 2013. He began the process of looking for employment of that kind after the subject transport accident.[18]
[18]Transcript 31
29 The defendant referred the plaintiff to a further offer of employment and a pre-placement medical assessment dated 11 March 2014 for the purpose of establishing that the plaintiff represented himself to the prospective employer in March 2013 as being physically capable of undertaking the work he was offered in 2013. The reason why the defendant referred the plaintiff to the pre-placement medical assessment dated 11 March 2014 is because no preplacement medical assessment relevant to the March 2013 offer of employment was produced by the defendant. It, however, cross-examined the plaintiff on the basis that the pre-placement medical assessment relevant to the March 2013 offer of employment would have been much the same as the medical assessment he had dated 11 March 2014.
30 The plaintiff agreed that he was successful in passing the pre-placement medical assessment relevant to the March 2013 offer of employment. He agreed that it would have been similar to the pre-placement medical assessment dated 11 March 2014.[19] Under cross-examination, the plaintiff was taken to Section 4 headed “Do you have difficulty with any of the following activities?” The questionnaire which followed required the plaintiff to tick a box designating either “Yes” or “No”. Of relevance to the cross-examination, he ticked the boxes which demonstrated that he had no difficulty crouching/bending/kneeling; running 100 metres; walking on uneven ground; standing for two hours or more; sitting for two hours or more; climbing stairs/ladders; being in confined spaces or working at heights; working in hot/cold extremes, and repetitive movement of hands or arms.[20]
[19]Transcript 37. The pre-placement medical examination dated 11 March 2014 is at DCB 124-125
[20]DCB 124. I have left out some which are not relevant, and have included others which were not the subject of direct cross-examination
31 The plaintiff qualified the answers he gave in cross-examination based upon the contents of Section 4. He said that he would have been a bit sore doing some of the activities, but what adverse problems he had affecting his lower back did not prevent him from performing the tasks required of him.[21]
[21]Transcript 38-40
32 Under further cross-examination, the plaintiff agreed that he did not refer to having injured his lower back in the subject transport accident where he was asked to disclose that under Section 3.[22]
[22]DCB 124 and Transcript 40
33 Under further cross-examination, the plaintiff was taken to Section 16 in which the examining medical practitioner recorded that the plaintiff demonstrated normal range of motion in his cervical, thoracic and lumbar spines. Furthermore, that the only abnormality admitted by him relevant to range of motion was stiffness on lumbar flexion, but otherwise cervical, trunk, lumbar and leg raising were normal. When confronted with the content of the medical examination, the plaintiff said that he probably kept his mouth shut “’cos I wanted the job”.[23]
[23]Transcript 40-41
34 Under further cross-examination, the plaintiff was referred to a section of the medical examination in which he said that he could undertake kneeling with hands behind his back, single leg squat left, single left squat right, full squat bounce, plus standing without using his hands. The examining medical practitioner gave him a score equating with excellent.
35 The plaintiff was then taken to a section relevant to lifting, which the examining medical practitioner assessed that he could lift 35 kilograms. The plaintiff doubted that he could lift 35 kilograms. He agreed that the medical assessment and the content of the pre-placement medical assessment that he had been taken through under cross-examination must have been similar to what he was asked to undertake in 2013.[24]
[24]Transcript 41-42
Asleep in a car
36 In May 2014, the plaintiff got into a friend’s car to have a sleep because he felt tired. He slept in the car for a couple of hours. When he woke up he experienced pain in his lower back and his left leg. He was off work for three months.[25]
[25]PCB 22 and Transcript 43
37 The plaintiff subsequently underwent a further pre-placement medical assessment on 11 August 2014 which I understand related to his time off work after he experienced the lower back pain and left leg pain after sleeping in the car.[26]
[26]The documents related to that preplacement medical examination are at DCB 112-123
38 The defendant submitted that the significance of the onset of further pain and a different distribution of pain was that it was something akin to an intervening event which was not causally linked to the injury which the plaintiff alleges he suffered in the subject transport accident. The plaintiff, on the other hand, submitted that it is linked and is part of the deterioration of the plaintiff’s lower back injury.
39 It is now convenient to return to Dr McDonald’s report, and the summary contained in it of the treatment which the plaintiff subsequently obtained for his lower back injury.
Returning to Dr McDonald
40 Dr McDonald then saw the plaintiff on 12 June 2014. The plaintiff was still experiencing left sciatic symptoms. He told Dr McDonald that the pain in his lower back had eased, however, he had significant numbness in his left leg below the knee and weakness over the whole of his left leg. The treatment options were steroid injection or a microdiscectomy. When reviewed on 31 July 2014, he told Dr McDonald that his lower back injury had settled, although, he still had a slight foot drop on the left side. He also told Dr McDonald that he was keen to get back to work in Western Australia and required a medical clearance.
41 Dr McDonald referred the plaintiff to Mr Etherington, orthopaedic surgeon. Mr Etherington did not provide a medical report in the conventional sense. Two courtesy letters which he wrote to Dr Sepetavc were produced, dated 26 October 2015[27] and 17 November 2015.[28] The plaintiff says that he first saw Mr Etherington on 12 June 2014.
[27]PCB 53-54
[28]PCB 55
42 The plaintiff had a CT-guided injection into his lumbosacral spine on 24 June 2014.[29] He had a further CT-guided injection on 26 February 2015.[30] He was referred to have a CT scan,[31] and an MRI scan, which was taken on 4 June 2015. It demonstrated a significant disc protrusion at L4-5 with contact and displacement of the left L5 nerve root.[32]
[29]PCB 36
[30]PCB 38
[31]The index to the Plaintiff's Court Book refers to a CT scan dated 16 January 2015 at page 37; however, the CT scan reproduced is dated 15 November 2012
[32]PCB 39
43 Mr Etherington waited for the outcome of the injections and a review of the plaintiff with the CT scan and the MRI scan. He obtained a history from the plaintiff of lower back pain and fluctuating bilateral leg pain, with his left leg being slightly worse than the right leg. He considered that the L5-S1 disc was significantly degenerative, with a protrusion at L4-5 which he considered was the cause of the plaintiff’s leg pain. He considered that because the plaintiff had not responded to non-operative care, that surgery was a reasonable option which would involve performing an L4 to S1 fusion and decompression.[33]
[33]PCB 55
44 The plaintiff continued seeing Dr McDonald. He referred to a number of specialists to whom the plaintiff was referred in his report – Mr Greg Malham, neurosurgeon; Mr David de la Harpe, orthopaedic surgeon, and then Mr Nick Hall, neurosurgeon, and lastly, Mr Rana Dhillon, neurosurgeon. The plaintiff’s solicitor obtained reports from these specialists, except for Mr Hall. I will refer to their reports later in these reasons, but for the time being I will return to Dr McDonald’s report.
45 Dr McDonald was asked a series of questions, the answers to which I will now endeavour to summarise. He considered that the plaintiff had suffered a soft tissue injury resulting from the subject transport accident which had also aggravated “pre-existing injuries”. He considered that the plaintiff was capable of returning to work, but would require restrictions on lifting, bending, twisting, prolonged sitting, kneeling and squatting. He considered that the plaintiff could not work an eight-hour day, but could probably work three to four hours per day within the restrictions he considered were appropriate. He saw no place for surgery based upon specialist opinion, and considered that the plaintiff would require physiotherapy, the need for weight control, ongoing analgesics and anti-inflammatory medication.
46 A colleague of Dr McDonald, Dr S Healy-Evans, referred the plaintiff to have a further CT scan which was taken on 12 November 2019,[34] and an MRI scan taken on 22 June 2020 on referral by Dr McDonald. The MRI scan refers rather more to degeneration at L4-5 and L5-S1 rather than the more specific references to discal damage in the earlier radiology.
[34]PCB 40-41. Interestingly, a copy was sent to Mr Roy Carey, orthopaedic surgeon. The parties made no reference to Mr Carey.
The other treating medical practitioners
47 The plaintiff saw Mr Malham on 3 February 2016. He wrote a courtesy letter to Dr McDonald dated 9 February 2016.[35] His report is brief, but appears to have been based upon all of the information in the possession of Mr Etherington and the relevant radiology. Essentially, he agreed with the surgical opinion of Mr Etherington regarding the proposed surgery and the extent of it.
[35]PCB 60-61
48 The plaintiff saw Mr de la Harpe on 22 July 2016. He wrote a courtesy letter to Dr McDonald dated 26 July 2016.[36] He subsequently provided a report dated 27 April 2017.[37] He disagreed with Mr Etherington and Mr Malham not about the need for surgery, but the surgical approach which was appropriate. He advocated an L4 to S1 posterior fusion and decompression. He advised the plaintiff to reduce weight and to have osteopathic treatment. He subsequently reviewed him on 28 November 2016 and 19 April 2017. He considered that the plaintiff was suffering from severe degenerative change at the lumbosacral disc and degeneration at L4-5, with a supervening large prolapse.
[36]PCB 56
[37]PCB 57-59
49 Mr de la Harpe implicated the parachuting incident, the subsequent transport accident, and the subject transport accident as contributing to the plaintiff’s lower back injury and left leg pain. He considered that the plaintiff did not have the capacity to perform his full pre-injury duties or hours as an electrician, and was limited to sedentary duties. He considered that he would be precluded or restricted in relation to social, domestic and recreational activities which infringed the physical restrictions which he considered should be placed upon the plaintiff. He considered his prognosis to be poor and considered that surgery may be an option in the future.
50 The plaintiff saw Mr Dhillon on 4 August 2020. He wrote a courtesy letter to Dr McDonald dated 4 August 2020.[38] He would appear to have had the same information and radiology as did Mr Etherington and Mr Malham. He considered that there was an absence of good symptoms of nerve root compression which led him to consider that the plaintiff would not benefit from surgery. He advised the plaintiff of the importance of core strengthening. He considered that the plaintiff would experience further episodes of back pain for the rest of his life, and if he maintained strong core strength, that he would expect to have an excellent quality-of-life.
[38]PCB 62-63
The medico-legal assessments
51 In addition to the medical evidence which I have already summarised, the parties went to the unfortunate lengths of having the plaintiff examined by six medico-legal specialists. Neither party analysed the medico-legal evidence in depth, but rather too broadly.
52 One of the issues raised by the defendant is that there is a lack of reliability in the opinions of some of the medico-legal specialists because they were not provided with a sufficient history of the pre-existing lower back injury, the plaintiff’s return to work, and an adequate understanding of the treatment which the plaintiff obtained both before and subsequent to the subject transport accident. It may be that the defendant did not go as far as that, but my sense of it is that I need to be satisfied that the opinions I am about to review are based on sound evidentiary footing.
53 I do not propose to summarise every history in every medical report of the medico-legal specialists. That is a burden that no judge should be obliged to undertake where counsel had been content to address that broadly rather than specifically. In any event, I have carefully read the histories taken by each of the medico-legal specialists. I have carefully read what material they were provided for the purpose of each of them understanding the plaintiff’s pre-transport accident state of health, and his post-accident state of health in order to determine whether there is a sound evidentiary footing for the opinions that they have expressed. It appears to me that they each had all that is necessary for them to express the opinions that they have expressed.
54 The first in time is Mr Wilde, orthopaedic surgeon, who examined the plaintiff on 27 October 2015, and provided a report bearing the same date,[39] and a supplementary report dated 11 May 2016.[40] Mr Wilde considered that the plaintiff had suffered a left posterolateral L4-5 disc protrusion, with L5 radiculopathy on the background of an annular disc tear sustained resulting from the transport accident. He considered that the plaintiff sustained a disc injury at L4-5 which was further compromised because of the weakness in the disc wall when he fell asleep in the car, which event precipitated a prolapse.
[39]PCB 85-94
[40]PCB 95-97
55 Mr Wilde considered that the plaintiff could not return to his pre-injury work as an electrician, but could work in alternative duties as an electrical foreman if he is not required to lift, bend or twist. He added that he considered that he is significantly restricted in his social, domestic and recreational activities due to the restrictions which would be imposed upon him. He considered that the plaintiff’s prognosis is guarded. He put the prospect of surgery as being a possibility.
56 Mr Wilde was provided with a report of Verifact[41] by the defendant which contains the employment information relevant to the plaintiff’s return to work in Western Australia. It was the material relied upon by the defendant in cross-examining the plaintiff about his state of health when undergoing pre-placement medical assessments. Mr Wilde commented that what he read was discordant with the history given by the plaintiff, but it is not my impression that he changed his opinion in any material way.
[41]DCB 43-165
57 Dr Chris Baker, specialist in occupational medicine, examined the plaintiff on 17 November 2015 and provided a report bearing the same date.[42] Dr Baker considered that the plaintiff had pre-existing degenerative changes in his lower lumbar spine which were aggravated by the transport accident. He considered that the plaintiff had a retained capacity to undertake suitable employment as an electrician undertaking wiring, circuit testing, and testing of fire systems and warning systems. In order to undertake those duties, he considered that the plaintiff would need to change his position and have the opportunity to sit comfortably without maintaining any particular posture for too long. He also considered that because of the plaintiff’s reduced tolerances, he would have difficulty engaging in activities such as domestic cleaning and gardening, and riding a motorcycle is not within his capabilities.[43]
[42]PCB 98-106
[43]PCB 105
58 Professor Stephen Davis, neurologist, examined the plaintiff in June 2020 and provided a medical report dated 30 June 2020.[44] He made the point that it was difficult to tease out the precise effect of the subject transport accident over and above the pre-existing lower back problems which the plaintiff informed him about. He considered that the plaintiff had suffered an exacerbation of pre-existing lumbosacral problems. He did not consider that there were any objective features of radiculopathy. He did not consider that surgery was indicated.
[44]DCB 5-9
59 Mr Gary Speck, orthopaedic surgeon, examined the plaintiff on 17 September 2020, and provided a report dated 28 September 2020.[45] Mr Speck appears to have been provided with more extensive material than any of the other examining medical practitioners, whether treating medical practitioners or those engaged on a medico-legal basis. He was even provided with correspondence with Mr Carey, orthopaedic surgeon. From what I have read from the correspondence from Mr Carey to Dr Healey-Evans, he was asked to examine the plaintiff on a medico-legal basis. In any event, I will ignore that correspondence, because neither party encouraged me to take Mr Carey’s opinion, to the extent that he has expressed one, into account.
[45]DCB 18-35
60 Mr Speck considered that the plaintiff had suffered soft tissue injuries which comprised an exacerbation of his lower back symptoms which he considered had resolved. In a synopsis he referred to the plaintiff’s pre-existing lower back condition, and considered that those symptoms had been exacerbated as a result of the subject transport accident. He considered that the plaintiff had recovered from the exacerbation, enabling him to take up work in Western Australia. He considered that the episode of sciatica which occurred when he slept in the car resulted in foot drop, from which he recovered, enabling him to again return to the work he was performing in Western Australia. He considered that his current condition is related to progressive degenerative changes well in train before the occurrence of the subject transport accident, and that his current condition is consistent with degenerative changes. He considered that there was no place for surgery, but that the plaintiff needed to attend a multi-disciplinary pain management program which he considered would be of benefit to him.
61 Professor Richard Bittar, neurosurgeon, examined the plaintiff on 11 September 2020 and provided a report bearing the same date.[46] He considered that the plaintiff had suffered an aggravation of lumbar spondylosis. He considered that the subject transport accident had been a significant contributing factor in the aggravation of the lumbar spondylosis. He characterised the plaintiff’s pre-existing lower back condition as fairly mild in severity and intermittent, having minimal impact on his recreational and working life over the years that followed their occurrence. He considered that the plaintiff’s condition deteriorated considerably following the subject transport accident, and he added that it caused a significant and sustained aggravation of his pre-existing lumbar spondylosis and that the aggravation remained a significant contributing factor to his ongoing pain, disability and his requirement for treatment.
[46]PCB 108-114
62 Professor Bittar considered that the plaintiff was permanently incapacitated for his pre-injury duties as an electrician and that he did not have any realistic capacity to secure and maintain suitable employment on a reliable and consistent basis. He considered that he was precluded from engaging in activities which involved heavy lifting, repetitive bending, twisting or stooping, prolonged sitting, standing or walking, forceful pushing or pulling and overhead activities which extended to not just his capacity for suitable employment, but also in relation to social, domestic and recreational activities.
The Plaintiff’s claimed consequences
63 The plaintiff commenced work as an electrician in Western Australia in March 2013. It would appear that he was able to perform the duties required of him without incident, except in early 2014, when he fell off a motorcycle while demonstrating it to another person. He suffered what would appear to be a temporary aggravation or an exacerbation of his lower back injury, and an injury to his left knee. Despite that incident, he continued working until the event where he slept in the car, resulting in him experiencing pain in his lower back and left leg. Despite that event, and having about three months off work, he returned to work until November 2014, when he ceased work altogether and took a redundancy.
64 In the plaintiff’s two affidavits and in his oral evidence, he admitted that he was able to perform all of the tasks required of him as an electrician while working in Western Australia. I was left with the impression that the work he was performing was fairly heavy work. However, in both of his affidavits and in his oral evidence, he said, in effect, that he worked in pain, and pain which he attributed to injury to his lower back resulting from the subject transport accident.
65 The plaintiff undertook retraining, completing Certificate IV in Occupational Health and Safety. He decided to undertake retraining because of some belief that if he could not work as an electrician, he would look for different work which might take him to building sites. He has applied for jobs as a general hand, as an electrician’s assistant, but he is of the belief that he would struggle to do work using his qualification or in those types of work.
66 The plaintiff obtained work in early 2018 working for VicTech in Geelong for a few months. He worked as a leading hand, working seven days per week. He described it as an easier job, and I assume when compared to the work he was performing in Western Australia. He struggled to cope with that work and stopped working altogether in mid-2018. Otherwise, he has performed some small cash jobs for friends and family and did some maintenance work at the Birregurra timber mill. He said that he obtained that work because he knows the owner of that business. He described the electrical work he performed as easy. He was paid in cash and firewood.
67 The plaintiff referred to the pain and suffering consequences and pecuniary loss consequences which he says are a direct consequence of the lower back injury he suffered in the subject transport accident in his affidavits and oral evidence. In summary, he said the following:
· Significant pain and restriction of movement of his lower back and constant left leg pain from his calf to his big toe. The occurrence of regular flareups of pain.
· Restriction of movement in bending, lifting, twisting and stooping. Difficulty walking, sitting and standing. Difficulty getting in and out of his car.
· Difficulty undertaking domestic cleaning, requiring the assistance of his sister, and performing gardening tasks.
· Interference with sleep.
· An inability to ride motorcycles.
· An inability to pursue his work as an electrician in Western Australia and with major construction projects for which he believes he would have earned an income consistent with what he earned in the financial year ending 30 June 2011 of nearly $100,000 gross.
68 The plaintiff has now not worked for a significant period of time. At present, he is the carer for his eighty-four-year-old mother. He receives a Centrelink allowance while undertaking the role.
69 The plaintiff continues to be treated by Dr McDonald. He continues to have chiropractic treatment. He takes medication to deal with the pain. He uses Panadol Osteo, Nurofen Osteo, Celebrex, Panadeine Forte and Endone for pain relief. He uses Valium to help him sleep and as a muscle relaxant.
Resolving the many issues
70 At the outset it is important to identify the legal principles which apply to this application. The parties both submitted that the impairment of the function of the plaintiff’s lower back is an aggravation of a pre-existing lower back condition. That requires me to identify each injury, to identify and separate the impairment consequences of each injury and to identify whether the additional impairment caused by the aggravation of the pre-existing injury qualifies as a serious injury.[47]
[47]Petkovski v Galletti [1994] 1 VR 436, and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[33]
71 The battleground was set for the medico-legal experts to endeavour to disentangle the plaintiff’s pre-existing lower back condition from what injury they believed the plaintiff suffered resulting from the subject transport accident. There is a clear contrast in their opinions, and indeed, quite a remarkable contrast. Mr Wilde and Professor Bittar have expressed the strongest opinions, favouring the conclusion that the subject transport accident is to be implicated in the impairment of the function of the plaintiff’s lower back and the consequences which the plaintiff says have resulted from that impairment of function in contrast to the opinions of Professor Davis and Mr Speck who say otherwise. Dr Baker considered that the plaintiff had suffered an aggravation of the pre-existing lower back condition, but not expressed anywhere near a strongly as the opinions of Mr Wilde and Professor Bittar.
72 What this leads me to is a conclusion that the plaintiff has failed to discharge the onus he bears to satisfy me that the impairment of the function of his lower back resulting from the injury he suffered in the subject transport accident is serious. I will now endeavour to disclose my pathway of reasoning.
73 Firstly, I am in no doubt that the plaintiff had an actively symptomatic pre-existing lower back condition. It was, in any event, something readily conceded by the plaintiff.
74 Secondly, the events of 2012 demonstrate that he suffered left-sided sciatica, and when the CT scan was taken, it demonstrated discal abnormality at L4-5 contacting and displacing the left L5 nerve root. The subsequent CT and MRI scans which I have reviewed demonstrate very similar appearances, although, the last MRI scan demonstrates different appearances. It would appear to be the same discal abnormality referred to by Mr Etherington, Mr Malham and Mr de la Harpe in advising whether the plaintiff should undergo surgery, and the type of surgical procedure which would best treat his lower back condition.
75 Thirdly, and despite suffering the consequences of the pre-existing lower back condition, and whatever further injury resulted from the transport accident, the plaintiff successfully applied for work in Western Australia as an electrician. Clearly, it was work which he believed he was capable of performing, and indeed, it was work which he performed without incident save for one incident which I will refer to next. Furthermore, it was work for which he obtained a medical clearance which demonstrated that he had no material deficit resulting from his lower back which would impair him in any respect from undertaking the work in Western Australia as an electrician.
76 Fourthly, the plaintiff worked in Western Australia suffering the same level of fluctuations in his lower back as he had prior to the occurrence of the subject transport accident. It worsened when he fell asleep in the car. I have not dealt with that separately as yet, and I will do so now. Sleeping in the car occurs to me to have been an innocuous event. There is nothing to suggest that the plaintiff slept in an awkward position, or that something occurred that constitutes an intervening event. I think it was simply an event causally connected to the plaintiff’s lower back condition as it existed prior to that event. In any event, the plaintiff recovered from that deterioration, underwent a further pre-placement medical assessment and returned to the same work he had previously been performing until November 2014, when he took a redundancy.
77 Fifthly, it is difficult to accept that the transport accident can be isolated as being the dominant cause of the consequences of the impairment of the function of his lower back given that he applied for and obtained work in Western Australia as an electrician, and was clearly capable of performing what was probably relatively arduous work without incident until his lower back condition obviously deteriorated to the point where he was no longer capable of performing that work.
78 Sixthly, I have resolved not to accept the opinions of Mr Wilde and Professor Bittar because I think they have placed significantly greater emphasis on the subject transport accident as being the dominant cause of the plaintiff’s impairment of function of his lower back than a review of all of the evidence demonstrates. It is clear that other equally well qualified specialists have placed the emphasis elsewhere and very differently. Whilst I accept that the subject transport accident probably aggravated the plaintiff’s pre-existing lower back condition, I do not accept that it was aggravated to the extent described by Mr Wilde and Professor Bittar. I think the opinion expressed by Mr de la Harpe is probably the more balanced opinion of all because he considered all of the likely contributors to the plaintiff’s lower back injury, and considered that there were three contributors, with the subject transport accident being but one of them.
79 Seventhly, and following on from the last point, Mr de la Harpe is not alone in reaching the conclusion that the transport accident is not the dominant cause of the plaintiff’s present impairment of function of his lower back. I think that is evident from my summary of all of the medical evidence.
80 Lastly, I am satisfied that the plaintiff has identified that he suffered an aggravation of the pre-existing condition of his lower back resulting from the transport accident. I am not satisfied that he has identified the separate impairment consequences of the pre-existing injury to his lower back when compared with the aggravation of that condition, nor that he has identified whether the additional impairment caused by the aggravation of the pre-existing injury qualifies as a serious injury.
Orders
81 On the basis of the foregoing, I am not satisfied that the impairment consequences resulting from the impairment of function of the plaintiff’s lower back are serious, after making a comparison of like impairments as I am obliged to do. I will order that the plaintiff’s originating motion be dismissed with costs.
- - -
1
1